Exclusive: Divisions escalate between red states and blue cities

There is a battle of over preemption going on in local government, here is what it is.
Video: Michael Schwab/The Tennessean

Veronica Zavaleta poses for a portrait near the display for her security cameras at her home, Wednesday, May 24, 2017, in Nashville, Tenn. ZavaletaÊmoved to Nashville from Mexico 15 years ago and since the election has taken precautions to protect her family, including installing five security cameras on her home.(Photo: Andrew Nelles / The Tennessean)

When Veronica Zavaleta fled an abusive partner in Mexico City in 2001, she felt a sense of security in her new Nashville home.

Today, Zavaleta, 43, says the town that embraced her years ago feels less welcoming, in part because state officials helped block a pro-immigrant measure by city leaders that would limit cooperation with federal immigration authorities.

“I feel like I should be able to reach my local authorities,” said Zavaleta, who owns a cleaning company. “I don’t see why I can’t have a voice.”

Republicans control both houses of Congress, the White House and the state legislatures in 32 states. But Democrats have a wild card: They still lead a majority of the country’s largest cities, often introducing policies that clash with the ideals espoused by the Republican Party.

That dynamic has frustrated state GOP leaders, who increasingly are focusing efforts on overriding decisions they deem too liberal in cities that include Nashville, Austin and Phoenix.

The practice, known as preemption, has ranged from blocking cities in Texas from regulating trees on private land to forbidding others in Arizona from requiring that companies offer sick leave to employees.

And the stakes have grown more punitive for cities that disobey.

“They’ve taken this opportunity to lash back at what have been, in their opinion, years of progressive policies that are ideologically different than what their constituents believe in,” said Lori Riverstone-Newell, an associate professor at Illinois State University who recently published a preemption study.

Red vs blue

Tennessee’s two largest cities, Nashville and Memphis, frequently are at odds with a state legislature where 101 of the 132 members are Republicans.

In late June, the threat of action by GOP legislators, which included a phone call between the Republican House speaker and Nashville Mayor Megan Barry, a Democrat, helped sink a city measure that sought to prevent the use of city funds and facilities to enforce federal immigration law.

“What’s the point of my even attempting to work on legislative efforts here if at the end of the day (the legislature) enjoys making sport of doing this,” said Nashville city councilman Freddie O’Connell, who supported the failed measure.

Legislators conduct business in the final days of the 2016 legislative session on April 19.(Photo: Larry McCormack / The Tennessean)

Throughout the country, legislatures have approved laws prohibiting local action on both marijuana and sanctuary cities.

Some states, including Texas, have taken a more extreme approach, known as super preemption, that includes punitive action against elected officials who do not comply.

A so-called sanctuary cities ban, passed this year in the Texas Legislature, calls for criminal charges and fines of up to $25,000 a day for local officials who prevent law enforcement officers from asking people they detain about their immigration status.

The law takes effect Sept. 1, but is being challenged in court by many of the state’s largest cities and counties.

“Where do we have all our problems in America? Not at the state level, run by Republicans, but in our cities that are mostly controlled by Democrat mayors and Democrat city councilmen and women,” Texas Lt. Gov. Dan Patrick said Aug. 4 while appearing on Fox Business Network. “That’s where you see liberal policies. That’s where you see high taxes. That’s where you see street crime.”

Lawmakers during a special session that ended Tuesday evening considered legislation that would constrain the ability of local governments to raise taxes without voters’ consent and regulate the bathroom use of transgender Texans.

The proposals failed to pass in the 30-day special session, leaving some Republican leaders calling on Gov. Greg Abbott to bring lawmakers back for a second special session.

One successful preemption measure, which stems from a run-in that Abbott had with officials in Texas’ capital city of Austin, would impose restrictions on local governments’ ability to prevent property owners from cutting down trees on their land.

Mayors across Texas have balked at the legislation.

“I was in the legislature for 26 years and I constantly heard from many conservatives who spoke negatively of big government and the expansion of big government in the region,” Houston Mayor Sylvester Turner said during a news conference. “Now, we find that the state government is really reaching down and telling local governments what they can and cannot do and pretty much trying to treat all cities as if we are the same.”

Local frustration

In Arizona, officials have overridden local measures on elections, e-cigarettes, fire sprinklers and firearms regulations.

In Wisconsin, lawmakers preempted a 1938 rule that required Milwaukee employees to live within the city’s limits.

And in Florida, legislators passed a measure that stopped local governments from regulating ride-sharing companies such as Uber and Lyft.

Defenders of preemption are quick to say it is not about political retribution but rather a need to correct improper moves by local governments.

“Left-wing special interest groups are going to local governments to advance their issues,” said Jonathan Williams, chief economist and vice president for the Center for State Fiscal Reform at the American Legislative Exchange Council, or ALEC.

Williams, whose conservative-leaning organization provides “model” legislation for lawmakers across the country, cited the advancement of tax and regulatory measures as examples of issues that he says special interest groups are pushing at the local level.

“I have literally never been approached by a special interest group,” O’Connell said, pointing back at ALEC’s American City County Exchange as evidence that conservatives are actually the ones pushing local governments on certain issues.

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Councilman Fabian Bedne walks into council chambers after greeting demonstrators before a Nashville Metro Council meeting at City Hall in Nashville, Tenn., Tuesday, June 20, 2017. The group gathered in advance of a Metro Council vote on an ordinance regarding civil immigration laws.
Andrew Nelles / The Tennessean

Councilman Fabian Bedne speaks during a metro council meeting at City Hall in Nashville, Tenn., Tuesday, June 20, 2017. The Metro Council voted on an ordinance regarding civil immigration laws.
Andrew Nelles / The Tennessean

Councilman Robert Swope speaks during a metro council meeting at City Hall in Nashville, Tenn., Tuesday, June 20, 2017. The Metro Council voted on an ordinance regarding civil immigration laws.
Andrew Nelles / The Tennessean

Vice Mayor David Briley listens to councilmembers during a metro council meeting at City Hall in Nashville, Tenn., Tuesday, June 20, 2017. The Metro Council voted on an ordinance regarding civil immigration laws.
Andrew Nelles / The Tennessean

Councilman Bob Mendes speaks during a metro council meeting at City Hall in Nashville, Tenn., Tuesday, June 20, 2017. The Metro Council voted on an ordinance regarding civil immigration laws.
Andrew Nelles / The Tennessean

Amanda Kail, of Nashville, holds a sign with other demonstrators before a metro council meeting at City Hall in Nashville, Tenn., Tuesday, June 20, 2017. The group gathered in advance of a Metro Council vote on an ordinance regarding civil immigration laws.
Andrew Nelles / The Tennessean

Councilman Robert Swope speaks during a metro council meeting at City Hall in Nashville, Tenn., Tuesday, June 20, 2017. The Metro Council voted on an ordinance regarding civil immigration laws.
Andrew Nelles / The Tennessean

Demonstrators gather before a metro council meeting at City Hall in Nashville, Tenn., Tuesday, June 20, 2017. The group gathered in advance of a Metro Council vote on an ordinance regarding civil immigration laws.
Andrew Nelles / The Tennessean

Demonstrators including Jose Muniz, 17, of Nashville, 5gather before a metro council meeting at City Hall in Nashville, Tenn., Tuesday, June 20, 2017. The group gathered in advance of a Metro Council vote on an ordinance regarding civil immigration laws.
Andrew Nelles / The Tennessean

Councilman Robert Swope, left, speaks with Councilman Freddie O'Connell, right, during a metro council meeting at City Hall in Nashville, Tenn., Tuesday, June 20, 2017. The Metro Council voted on an ordinance regarding civil immigration laws.
Andrew Nelles / The Tennessean

Demonstrators gather before a metro council meeting at City Hall in Nashville, Tenn., Tuesday, June 20, 2017. The group gathered in advance of a Metro Council vote on an ordinance regarding civil immigration laws.
Andrew Nelles / The Tennessean

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Susan Haynie, the Republican mayor of Boca Raton, Florida, said preemption measures from state lawmakers such as one that would prevent the placement of wireless facilities in public rights-of-way simply stifle local governments.

“This is not a partisan issue,” she said. “This is a common sense issue.”

Haynie said lawmakers’ efforts to override local governments are a departure from the oft-espoused Republican credo that the best form of governance is local.

“They have this attitude that they can do a better job,” she said. “They’re in session once a year for a couple of months. We cannot depend on them to assist us in running our cities on a daily basis.”

One the rise

Across the country, there have been preemption laws in 27 states over minimum wage, 21 states over paid leave, 38 over ride-sharing and 42 over tax and expenditure issues, according to the National League of Cities.

Riverstone-Newell called the current wave of preemption a heavy-handed approach aimed at serving the interests of business groups or setting morality standards on local governments.

“Republicans have long argued that the lowest level of government that can deliver a service should be the one to do so. So their preemption of local laws and regulations for the sake of state uniformity is hypocritical,” Riverstone-Newell said.

Williams and Jon Russell, director of the American City County Exchange, a division of ALEC, point out that while the U.S. Constitution indicates the federal government’s power derives from the states, there’s no such provision for cities.

“It was understood by the framers that cities and counties were creations of the states and the states would govern them,” Russell said. He added that there’s hypocrisy among Democrats who criticize preemption when Republicans use it but not when members of their party do.

Preemption is not new but the practice has become more prevalent and punitive throughout the years.

“With the acrimonious politics that we’ve seen, particularly in the last 5 to 6 years, (preemption) really has just kind of taken off even more,” said Brooks Rainwater, director of the National League of Cities’ Center for City Solutions.

Michael Alfano, campaign manager for the Campaign to Defend Local Solutions, said beyond being a political fight, preemption is a battle between the interests of corporations and individual citizens.

In the 1980s, the tobacco industry began pressuring lawmakers throughout the country to override efforts by local governments that had enacted local smoking bans. Between 1982 and 1998, 31 states incorporated preemption provisions in their tobacco control laws, according to a 1999 study by the Centers for Disease Control and Prevention.

In the 1990s, the National Rifle Association pushed lawmakers to use preemption laws to undo local gun regulations. Today, more than 40 states have some form of preemption that prohibits local governments from passing new gun regulations on top of state law.

“Preemption affects people whether they know it or not,” said Franco Ripple, spokesman for the Campaign to Defend Local Solutions, citing the impact the practice has on everything from wages and equality to environmental protections.

Some cities have begun pushing back through lawsuits, said Alfano, who cited a handful of court challenges to preemption laws, including one in Cleveland that successfully fought a state law preventing the city from implementing a local-hire rule. The rule required that local people be hired for publicly funded construction projects.

Beyond potential legal challenges, Alfano said there also could be citizen ballot initiatives and proactive legislation to implement stronger protections for local governments.

“I think it’s going to take more and more cities doing that,” Alfano said.

Ripple cited the public pressure created by businesses and citizens in North Carolina in response to the state’s so-called “bathroom bill,” which preempted local governments, as evidence of another potential outcome.

Push back in Texas killed a similar measure that was trumpeted by Patrick, the lieutenant governor.

“When people understand these things, I think that they will stand up and demand a different type of representation that is in the interest of local communities and local values,” Ripple said.

Reach Joel Ebert at jebert@tennessean.com or 615-772-1681 and on Twitter @joelebert29.

Reporters John Moritz and Madlin Mekelburg from Texas, Mary Jo Pitzl from the Arizona Republic, Kathleen Gray from the Detroit Free Press, and Jason Stein from the Milwaukee Journal Sentinel contributed to this report.